Editorial: CUSD Meeting Tonight; Union Pay And Brown Act

by MissionViejoDispatch.com on March 16, 2011

The protagonists against CUSD’s restoration of some union pay cuts have accused Dr. Farley and the Trustees of a contract misinterpretation and at least one Brown Act violation. The accusers are fortunate the Trustees on Wednesday will bail them out of their threatened Brown Act lawsuit, because the suit would have been a loser.

The Board will not “cure” its actions with any admissions of a Brown Act violation or other legal wrongdoing. Nevertheless it will re-do the controversial actions in a special public meeting, thereby short-circuiting any potential lawsuit, even if the suit was a hollow threat.

Media organizations, including the OC Register, have been jumping on the Brown Act bandwagon without making a coherent legal analysis. They will undoubtedly interpret the Board’s public reaffirmations Wednesday as an implicit admission of a Brown Act violation. The District’s reaffirmation is a practical action by the District to avoid a frivolous Brown Act suit, but it certainly isn’t necessary to prevail against such litigation.

Nevertheless, the District made its own bed by using Brown Act discretion unnecessarily or without sufficient explanation. It can make a colorable argument that the secret discussion of restoring furlough days was “labor negotiations” and that no “reportable action” was required because Trustees were by consensus giving “instructions to its negotiator” for a response to the Union’s demand for pay restoration following the State’s “Enacted 2010-2011 Budget” last October.

That argument by the District would probably fly in court, but Dr. Farley has to learn he’s not in Anaheim anymore. Secrecy rightly breeds distrust and contempt in South OC, so it should be avoided at all costs. Secrecy and coverups are often more damaging than the alleged “original sin.”

Since the Trustees theoretically might have instead denied pay restoration, its deliberations would best be private due to a potential court action by the Union. Once the Board agreed to the additional pay, however, it’s difficult to conclude it shouldn’t have immediately reported its decision under the Brown Act, although it contends negotiations were still ongoing pending ratification by the union. But the union had demanded restoration and the Trustees agreed – it’s over. No union “ratification” seems necessary because agreement exists and negotiations are done. But again, this argument probably wouldn’t pass muster in court in light of some inconsequential procedural communications which may have subsequently occurred between the “negotiators” for two sides.

Regarding the “original sin,” CUSD detractors contended pay restoration wasn’t required because the CUSD-Union contract language triggers action following “the adoption of the 2010-11 and 2011-12 state budgets.” They emphasize the word “AND” contending 2011-2012 hasn’t yet been adopted and the two annual budgets don’t each stand on their own. Although technically understandable, that doesn’t seem to make reasonable or practical sense, as concluded by both the District and the Union.

Contract interpretation is not at issue when terms are agreed by both parties, and that was the case here. Normally Board action isn’t required to execute a contract obligation. If a payment is required, it is done administratively. Arguably the Superintendent could have moved on the matter alone, perhaps with attorney input, but Dr. Farley properly realized the issue was substantial enough to get concurrence from the Board regarding its understanding and intent under the contract.

From a practical standpoint, the issue was handled in a manner which might improve mutual respect and assist in future discussions with the Union. That could be critical if the state budget crisis necessitates more concessions from the Union.

It is noteworthy that the pay restoration wasn’t without reciprocal benefits. The action added two more school days for Capo’s kids.

The Dispatch concludes the contract action rescinding the furlough days was proper under the contract and in the best interest of the students and the District. Although there was no provable technical violation of the Brown Act, the District creates its own firestorm with unnecessary use of its Brown Act discretion or insufficient advance explanation for closed sessions, plus public misstatements which create confusion about the secret discussions.

Reasonable people may disagree on the idea of whether the restoration trigger for CUEA has been met. But what has not been discussed is how and why restoration was automatically granted to CUSD’s other bargaining units and associations when there is no contractual obligation to do so. Restoration of furlough days and wages to these groups without public discussion and vote is not legal.

When another local news outlet filed a Public Records request with CUSD for information of that issue, they were told they would have to pay $270,000 for the information. The remedy proposed by CUSD, to “reaffirm” a vote that never occurred, is not a solution.

In the wake of a divisive election, facing more layoffs and deeper cuts to student programs, the actions and approach of our new board is imprudent at best. It will not engender trust in the new board.